Written by David B. Montgomery
On June 25, 2019, Governor Pritzker signed the Cannabis Regulation and Tax Act (“Cannabis Act”) into law, legalizing the recreational use of cannabis for adults in Illinois. Many employers question how the Cannabis Act will affect them. Will drug policies need to be updated? Can employees be discharged or disciplined for cannabis use? How can you tell if an employee is under the influence of marijuana? The drafters of the new law have provided many answers to these burning questions, while leaving some unanswered.
Background
Since 2017, some members of the Illinois legislature have worked on a bill to legalize the recreational use of marijuana. With the 2019 election of a Democratic governor supporting legalization, and a legislature controlled by Democrats, Illinois became the 11th state to legalize cannabis, and the first state to do so by legislation, rather than through a referendum. The new law takes effect January 1, 2020, and key portions of the law include:
- Illinois residents 21 years of age or older may purchase and possess up to 30 grams of cannabis flower, up to 500 milligrams of THC contained in cannabis infused products, and five grams of cannabis concentrate. Non-Illinois residents will be able to possess half the amount as Illinois residents.
- Medical marijuana dispensaries will be the only legal sellers of recreational marijuana until the state grants additional licenses to new sellers, probably in mid-2020. A key part of the new law is the establishment of an inclusive and regulated market of cultivators, processors, retail stores and testing labs. Assistance will be provided to applicants in areas adversely affected by enforcement of marijuana criminalization laws.
- Recreational use of cannabis is prohibited in any public place, in a motor vehicle, on school grounds, near a person under 21 years old, or near an on-duty school bus driver, police officer, firefighter or corrections officer.
- Employers, landlords or private property owners may prohibit the use of marijuana on their property.
- Recreational cannabis users cannot grow their own marijuana plants.
- Generally, people convicted of possession of under 30 grams of marijuana prior to legalization (750,000+ people) will have their records expunged.
- A quarter of tax and licensing revenue from cannabis will go to the communities most affected by the drug war.
Employment Issues
The Cannabis Act specifically addresses several issues that will face employers following the legalization of recreational cannabis. It provides guidance on what an employer may prohibit and sets forth a vague framework for disciplining and discharging employees for marijuana use while working or being under the influence at work. It protects employees from adverse employment actions for marijuana use outside of work.
Cannabis is a Lawful Product
Under the Illinois Right to Privacy in the Workplace Act, an employer may not subject to adverse employment action an employee who uses a lawful product (e.g., tobacco, alcohol) outside of the workplace, and who is not impaired by such product during work, just because of the use of the lawful product. The Cannabis Act amends the Privacy in the Workplace Act to make cannabis a lawful product. Thus, employers cannot take adverse employment actions against employees who use cannabis away from work, during non-work time.
However, cannabis is still an illegal controlled substance under federal Controlled Substances Act. With that in mind, the Cannabis Act does not require employers who must comply with federal rules and regulations to become non-compliant. While the Cannabis Act will probably allow employers to continue to have policies prohibiting any cannabis use if the employer needs to have such rules to comply with applicable federal law, it is possible that such policies may nevertheless violate the Privacy in the Workplace Act.
Zero-Tolerance Policies
The law provides that “[n]othing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a non-discriminatory manner.” The new law makes clear that employers may discipline or terminate employees for violating the employer’s reasonable employment or drug policies, and employers can forbid employees from being under the influence of or using marijuana while performing job duties or while on call. As cannabis is a legal substance, a reasonable policy would not include forbidding an employee from using cannabis away from work while not working or not on call.
Knowing if an Employee is Under the Influence of Cannabis
The outward manifestations of cannabis impairment are more difficult to recognize than those of alcohol impairment. The new law sets forth guidelines for employers to determine if a worker is under the influence or impaired:
An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence of carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
As this list is non-exhaustive, an employer should be able to rely on other indicia of impairment (e.g., the employee smells of marijuana).
Discipline and Discharge
If an employer disciplines or discharges an employee due to a good faith belief that the employee is under the influence or impaired by cannabis, the employer must give the employee a reasonable opportunity to contest the employer’s determination. Neither what constitutes a good faith belief that an employee is under the influence or what constitutes a reasonable opportunity to contest an employer’s determination are defined.
Good faith belief
A positive drug test alone is probably insufficient to create a good faith belief that an employee is under the influence of impaired by cannabis. Drug tests can demonstrate whether an employee has recently used marijuana, but because marijuana can stay in an employee’s system for months, testing positive for marijuana does not mean the employee was under the influence while at work or on call. Rather than relying upon a drug test to form a good faith belief, an employer should rely upon whether an employee displays the symptoms set forth in the Cannabis Act in addition to a positive drug test result. Employers should consider training managers and supervisors on spotting symptoms of employees being under the influence, and to document such symptoms. Managers and supervisors should document whether any possible signs of marijuana use were present following workplace accidents.
As discussed above, the Privacy in the Workplace Act prohibits an employer from disciplining or discharging an employee for using a lawful product (e.g., cannabis) away from the employer’s premises during non-working hours. Under that Act, aggrieved employees may recover actual damages, attorneys’ fees, costs and statutory penalties. To avoid potential liability under the Privacy in the Workplace Act, an employer taking adverse action against an employee should have strong evidence to support a good faith belief that the employee was under the influence or impaired by cannabis.
Opportunity to Contest
While it is unclear what type of opportunity to contest an employer must give an employee, it is advisable that the employer document in writing the employee’s explanation, as well as the date, time and location such explanation was given. Witnesses to the explanation should be noted, and, if the employee’s explanation is rejected, the employer should document why the explanation was rejected.
No Private Right of Action
The law makes clear that it does not provide an employee with a private right of action against his/her employer for the following:
- Subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to test or cooperate in testing procedures;
- Disciplining or terminating an employee based on the employer’s good faith belief that an employee was impaired by or under the influence of cannabis while at the workplace, while performing job duties or while on call in violation of the employer’s workplace drug policy; and
- Injury, loss or liability to a third party if the employer did not know or have reason to know that an employee was impaired.
Drug Testing
Because marijuana is now considered a lawful product and the Cannabis Act limits an employer’s ability to discipline or discharge an employee to those situations where the employer has a good faith belief that the employee is under the influence or impaired by cannabis, it appears that drug testing for marijuana will no longer be permitted in Illinois unless the employer has a good faith reasonable suspicion that the employee was impaired or under the influence while at work. Pre-employment marijuana tests are probably now prohibited because they would only detect marijuana use prior to coming to work for the employer, and such use is lawful. Thus, the only type of testing for marijuana that an employer can conduct appears to be “reasonable suspicion” drug testing.
The Cannabis Act does not apply to employers regulated by the U.S. Department of Transportation’s drug and alcohol testing regulations.
Takeaways for Employers
- Employers may ban the use of marijuana in the workplace and prohibit an employee from using marijuana while on call (employer must give employee at least 24 hours’ notice to be on standby).
- Employers may adopt reasonable zero-tolerance or drug free workplace policies. Such policies will not be reasonable if they prohibit the use of marijuana at any time.
- Employers may prohibit employees from arriving to work under the influence of marijuana.
- Employers should only conduct reasonable suspicion drug testing. An employer may require an employee to submit to such a drug test if the employer has a good faith basis for believing the employee is/was under the influence while working or on call. Employers should not rely upon a positive drug test alone in discipling or discharging an employee, but should mainly rely upon indicia documented by managers or supervisors indicating that the employee was under the influence.
- An employer may discipline or discharge an employee if the employer has a good faith belief that the employee is under the influence of marijuana while working or on call. Employers must be vigilant in documenting signs of impairment.
- An employer must allow an employee to contest the employer’s basis for believing that the employee was under the influence of marijuana. An employer should be vigilant in documenting the employee’s excuse and why the employer rejected or accepted such excuse.
- Illinois employers should reassess and update their drug policies.
- Illinois employers should train managers and supervisors to spot the signs of an employee under the influence of cannabis.
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and the reader is urged to consult a lawyer concerning his/her own situation and any specific legal questions he/she may have.